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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on an exception to an award of
Arbitrator Jerome H. Ross filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Agency filed an opposition to the
Union's exception.

The award denied the Union's request for attorney fees. The Union
argues that the award is contrary to law.

For the following reasons, we conclude that the Union has failed to
establish that the award is deficient under section 7122(a)(1) of the Statute.
Accordingly, we deny the exception.

II. Background and Arbitrator's Award

The Arbitrator sustained, in part, a grievance over the Agency's 14-day
suspension of the grievant and reduced the suspension to an oral reprimand. The
Authority denied the Agency's exceptions to that award in American
Federation of Government Employees, National Council of EEOC Locals No. 216 and
U.S. Equal Employment Opportunity Commission, 49 FLRA 906 (1994).

The Union filed a request for attorney fees with the Arbitrator. The
Arbitrator noted that, by sustaining a grievance that included a request for
backpay as a remedy, his initial award "presumed that backpay will be paid,
with any accrued benefits." Award at 1. Applying the standards governing
an award of attorney fees under the Back Pay Act, the Arbitrator found that the
Union was the prevailing party in the initial award but that payment of
attorney fees was not warranted in the interest of justice. In this regard, the
Arbitrator found that: (1) the Agency did not engage in a prohibited personnel
practice; (2) the Agency's action in disciplining the grievant was not
clearly without merit or wholly unfounded; (3) the grievant was not
substantially innocent of the majority of charges brought by the Agency;
(4) the Agency did not initiate the charges against the grievant in bad
faith; (5) the Agency did not commit a gross procedural error which
prolonged the proceeding or severely prejudiced the grievant; and (6) the
Agency did not know, nor should it have known, that it would not prevail on the
merits when it brought the proceeding. Consequently, the Arbitrator denied the
Union's request for attorney fees.

III. Exception

A. Union's Contentions

The Union contends that the award is deficient because the Arbitrator
improperly concluded that attorney fees were not warranted in the interest of
justice. The Union argues that an award of attorney fees is warranted in this
case because the fees are related to the Arbitrator's award reversing the
grievant's suspension and requiring the Agency to pay the grievant backpay. The
Union contends that but for the Agency's unjustified suspension of the
grievant, the Union would not have incurred attorney fees and the costs of
litigation.

B. Agency's Opposition

According to the Agency, in order to sustain a claim for attorney fees,
the Union must demonstrate, among other things, that fees are warranted in the
interest of justice. The Agency notes the interest of justice criteria set
forth in U.S. Department of the Army, Red River Army Depot, Texarkana, Texas
and National Association of Government Employees, Local R14-52, 39 FLRA
1215, 1222-23 (1991) and argues that, after a review of the findings in his
initial award, the Arbitrator found in a fully supported determination that the
Union's request did not meet any of those criteria. Additionally, the Agency
contends that attorney fees could have been denied based on the principle of
functusofficio because the Arbitrator had no authority to issue
another decision or modify his initial award.(2)

IV. Analysis and Conclusions

The Union has not demonstrated that the Arbitrator's conclusions as to
any of the interest of justice criteria are deficient. Rather, the Union merely
disagrees with the Arbitrator's conclusions. As such, the Union has not
demonstrated that the award is contrary to law. See,
for example, U.S. Patent and Trademark Office and Patent Office
Professional Association, 32 FLRA 375, 378 (1988).

V. Decision

The Union's exception is denied.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. Member Talkin did not participate in
this decision as this case arose during her tenure as Chief of Staff of the
Equal Employment Opportunity Commission.

2. The principle of functus
officio means that once an official has fulfilled the function or
accomplished the designated purpose of his or her office, the official has no
further authority. National Treasury Employees Union, National Treasury
Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix
District, 44 FLRA 252, 263 (1992). In light of our disposition of this
case, we do not address the Agency's argument regarding functusofficio.